Steak and Cobbler

There are several arguments in support of the death penalty. The three most popular are that the death penalty deters crime, that it removes a criminal’s capacity for more crime, and/or that it is retribution for serious offenses. I contend that the death penalty’s deterrent effect is non-existent, that while it does incapacitate a criminal, this is not the primary reason for the continued existence of the death penalty.

The death penalty is, at root, retribution. It is a demonstration of the group’s power over the individual. In pre-modern societies, executions served to prevent blood feud and widening violence between families and clans. An individual act of aggression which ends in murder can spiral out of control, engulfing whole communities in the fire of mutual violence. The famous American Hatfield and McCoy feud began with a Civil War era murder, escalated with a property fight over a pig and ended with ten dead. On an even larger scale, the wars in Afghanistan over the past 30 years are an echo of blood feud and the widening spiral of violence.

As the modern Nation-State formed out of the patchwork of feudal territories and holdings, it extended a monopoly on force. Only the State could use deadly force to stop crimes. Only the State could execute criminals. Only the State could field an army. Individuals slowly lost the right to use violence outside of State sanctioned arenas. Following this trend, the State puts to death all those who challenge the State’s monopoly on violence.

The death penalty is the modern Nation-State further consolidating its monopoly on violence. This consolidation happens through the Law. The Law cannot be the personal law of Vendetta. It must be universal and extend over all, equally. It cannot be arbitrary. It must be clear, standard, and rational. The rationalization of the State’s power over life and death has caused both the People’s Republic of China and the United States of America to slowly limit cases when people may be put to death. Quite recently, the PRC has decided to no longer execute people for economic crimes. However, in this article I will only focus on the United States.

The Supreme Court of the United States has been shrinking the range of the death penalty over the past two hundred years. In 1972, Furman v Georgia put a moratorium on all state executions and an end to all federal executions, on the grounds that capital punishment constituted a form of cruel and unusual punishment because there were no Constitutional standards to guide who received the death penalty. In 1976, Gregg v Georgia lifted the state level moratorium by providing these standards. Effectively, Gregg v Georgia and four other near-simultaneous SCOTUS decisions laid down one simple rule for the application of capital punishment: A murder done while committing another felony, deserves the death penalty. (Basically, don’t stick your thumb in both eyes of the State. One crime and they won’t kill you. Two crimes at the same time and you’re done for.) However, there were no executions in the United States for another eight years. Then on December 7, 1982, Charlie Brooks, Jr was executed by lethal injection in Huntsville, Texas.

II

I’m from Texas. Everything’s bigger in Texas – the cities, the football teams, the trucks, the childhood obesity, the crime, the annual number of executions. We punitively kill more people a year than all the rest of the states combined. (Although in 2009, Indiana and Missouri pitched in by executing one prisoner each, helping to form what I call “the Coalition of 10” which finally allowed the rest of the United States to say Texas no longer puts more people to death than all the rest added together. http://www.amnesty.org/en/death-penalty/death-sentences-and-executions-in-2009/americas.) From December 7, 1982 (the beginning of the lethal injection era) through July 20, 2010, the state of Texas has put 462 individuals to death at the Walls Unit in Huntsville, Texas.

As you can see, dear reader, with the exception of child murder, two crimes at the same time, and you’re done for.

Before 1976, the death penalty was carried out in the electric chair “Ol’ Sparky” at the Walls Unit in Huntsville, TX. When the SCOTUS moratorium went into effect in 1972, Ol’ Sparky sat quiet for several years. In 1977, a Dallas television reporter and several American Civil Liberties Union lawyers filed suit to film the next execution in the electric chair. The Texas legislature wanted a less spectacular way of executing prisoners and so choose lethal injection. (“Charlie Brooks Last Words”, Dick Reavis, Texas Monthly Magazine, February 1983 p101. Available on Google books). Ol’ Sparky was never used again. However, this confrontation brings up two interesting points.

Executions historically were public affairs. In the United States, until public opinion turned against it in the 1920s, hangings were quite public affairs. Even today, in Saudi Arabia, Iran, and in Taliban controlled parts of Afghanistan, executions are still public affairs. Executions were and are spectacles. A public execution is both a deterrent and entertainment. Even the electric chair provided a form of entertainment. Students from the universities surrounding Huntsville would often come hang out outside Death Row on days when executions were scheduled, drinking beer, smoking cigarettes and waiting. When the prison lights dimmed as the chair fired up and the prisoner died, the students cheered. (If you’ve ever been to Huntsville, Texas, you’d understand why this is entertainment. The only other thing to do is drink beer under a huge Lord of the Rings style statue of Sam Houston, the first president of the Republic of Texas. Huntsville isn’t all that exciting.)

Secondly, the electric chair provided the condemned the opportunity to die like a man, an all-important thing in a state like Texas, where even to this day, behavior is loosely guided by the Southern Code of Honor. (And yes, dear reader, you’re damn right it’s capitalized.) The electric chair allowed the prisoner to walk up, sit down under his own power, and die, more or less, on his feet. There was fear and terror but it was mostly over quickly. Lethal Injection changes this. The condemned is strapped to a gurney, wheeled into the execution room, hooked up to an IV and at the appointed time, the three drug combination of Sodium Thiopental, Pancuronium Bromide and Potassium Chloride does its job. Sodium Thiopental sedates the person. Pancuronium Bromide is a muscle relaxant which collapses the diaphragm and lungs. Potassium Chloride stops the heart. The offender is usually pronounced dead approximately 7 minutes after the lethal injection begins. The cost per execution for only the drugs is $86.08. (All the above from http://www.tdcj.state.tx.us/stat/drowfacts.htm.)

In changing the method of execution from Ol’ Sparky to Lethal Injection, the state of Texas has removed the public aspect of execution. When a prisoner is executed, other than Texas Department of Corrections personnel, there are usually less than ten people watching. They are clergy and relatives of victims and the condemned. Texas has also removed the capacity of the condemned to die in an honorable way. Texas executions now demonstrate the utter power of the State over those who challenge its authority by reducing the prisoner to a body to be shuttled about, poked, prodded and finally disposed of.

Charlie Brooks, Jr was the first man executed in the United States by lethal injection. He went to high school at IM Terrell High, in Fort Worth, Texas not more than about 5km from my own high school. On December 14, 1976, Brooks and his friend Woodie Loudres drank all day, then left their hotel apartment, deciding to go shoplifting. While driving around the South Side of Fort Worth, looking for place to steal from, their car died. The two then went to a used car lot, where they intended to steal an automobile. They ended up “test driving” an automobile with the used car lot’s mechanic, David Gregory. Brook and Loudres then kidnapped Gregory and at gunpoint, stuffed him into the trunk of the car. They took him back to their hotel, tied him up with duct tape and clothes hangers. In the course of the kidnapping, someone shot Gregory in the head with a revolver, killing him. (“Charlie Brooks Last Words”, Dick Reavis, Texas Monthly Magazine, February 1983 p105. Available on Google books). Because Gregory was murdered after being kidnapped, capital murder had been committed. Yet it was not clear who exactly murdered David Gregory. There were no witnesses to the actual murder and the murder weapon was never found. Yet, eight years and one week later, Charlie Brooks was executed by lethal injection after all of his appeals were exhausted.

Execution by lethal injection serves to show the absolute power of the State over its citizens. It is supposed to be rational and orderly, not capricious, yet so much of Capital Punishment in the United States is arbitrary and random. African American Males are over represented in the death row population. Black murderers and white victims results in a death penalty conviction much more frequently than black on black crime. The case of Charlie Brooks, Jr seems like a textbook example of the famous game theory experiment, Prisoner’s Dilemma. Charlie Brooks, Jr. was executed without clemency in 1982 while his partner, Woodie Loudres, was able to appeal his way to a sentence with the possibility of parole. Yet, there was a sufficient amount of reasonable doubt of Brooks actually killing David Gregory that a death penalty conviction probably should have been changed into a sentence of life imprisonment. Yet, then-Texas Governor Bill Clements refused the customary single 30 day stay of execution. Brooks was summarily executed after the Supreme Court upheld the Fifth Circuit’s denial of his appeal.

IV

The death penalty in the the United States and especially the state of Texas serves not as a deterrent, but as retribution for transgression. The crimes necessary to incur the death penalty have been clearly spelled out in all the states that have the death penalty. Generally, one must murder someone in the course of commiting a felony. Over the past hundred years, The Supreme Court has determined the crimes for which prisoners can be put to death. This creates the ground for the states to then determine the method of execution. The move from the electric chair to lethal injection served to strip execution of any public spectacle. It also increased the power of the State over the individual by removing any agency or responsibility from the condemned. This reduction in agency, coupled with the arbitrary nature of the actual time of the execution and the rationalization of what it takes to incur the death penalty in the United States, increases the power of the State. This increase demonstrates the power of the group over the transgressive individual.

In Texas, you know what’s gonna happen if you kill a cop, a little kid, or a shop clerk in the course of a robbery. The state of Texas will kill you. But the state’s not gonna kill you because you did something bad. The state’s gonna kill you ‘cause you are flaunting the clearly delineated laws of the state of Texas. You killed. And only the State can kill. And the state’s gonna make it even worse, ‘cause it’s gonna take every bit of choice in the matter away from you. It will lie you down, strap you to a stretcher and put you to sleep. You can’t even walk to your death. The State has to show its power is absolute. Even if it does it arbitrarily. (Of course, arbitrary absolute power characterizes tyranny. Yet, a murder victim has no choice in the time of their death either. In this essay, I did not nor would not address whether the death penalty is just or not. I only described one interesting aspect of the death penalty where I come from. Think of this essay as travel literature.)

The condemned in the state of Texas can eat whatever they want for their last meal. Charlie Brooks, Jr requested fried shrimp and oysters. He was told that wasn’t in the pantry. He was given a T-Bone steak and peach cobbler instead.

Last modified on Friday, 18 April 2014 17:29

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